EXHIBIT 10.1
SECOND MODIFICATION AGREEMENT
THIS SECOND MODIFICATION AGREEMENT (the "Agreement") is entered into as
of the 21st day of September, 2001 between XXXX, INC., a Delaware corporation
(the "Borrower"), and FIRST UNION NATIONAL BANK, a national banking association
(the "Lender").
INTRODUCTORY STATEMENTS
The Borrower and the Lender are parties to that certain Letter of
Credit and Reimbursement Agreement dated as of July 1, 1998, as amended by a
Modification Agreement dated July , 2001 and as hereafter amended, modified,
restated or supplemented (the "Reimbursement Agreement") whereby the Lender
issued a letter of credit for the benefit of the Borrower.
The Borrower desires to make loans to certain of the Borrower's shareholders, as
more particularly described in Schedule A attached hereto (the "Shareholder
Loans") and has requested that Lender consent to the Shareholder Loans.
Further, the Borrower has requested that Lender amend the Reimbursement
Agreement to increase the maximum aggregate dollar amount of transactions which
the Borrower is permitted under the Reimbursement Agreement to enter into with
its officers, directors, shareholders or affiliates during any fiscal year of
the borrower.
The Lender has agreed to consent to the Shareholder Loans pursuant to the terms
and conditions of this Second Modification Agreement. Additionally, the Borrower
and the Lender have agreed to modify the Reimbursement Agreement in the manner
set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, each to the
other, the parties do hereby agree as follows:
1. Effect of Agreement. This Agreement shall modify and amend the
Reimbursement Agreement as set forth herein. Except as expressly modified
hereby, the Reimbursement Agreement, including, without limitation, each
representation, warranty and covenant contained therein, shall be and remain in
full force and effect. In the event of any conflict or inconsistency between the
terms of this Agreement and the Reimbursement Agreement, this Agreement shall
control.
2. Defined Terms. Except as otherwise provided herein, all capitalized
undefined terms used herein shall have the meanings assigned thereto in the
Reimbursement Agreement.
3. Consent. Lender hereby consents to the provision of certain
Shareholder Loans by Borrower to each of Xxxxxx X. Xxxx, Xx., X.X. XxXxx Xxxx
and Xxxx X. Xxxx in accordance with the terms and conditions set forth in
Schedule A attached hereto.
4. Amendment. Section 6.5 of the Reimbursement Agreement is hereby
amended by deleting the dollar amount "$2,000,000" from the seventh (7th) line
of such section and by substituting the dollar amount "$12,000,000" in its place
and stead.
5. Representations and Warranties of the Borrower. The Borrower
represents and warrants to the Lender as follows:
(a) The Borrower has no defenses, offsets or counterclaims
against the Lender relating to the Reimbursement Agreement, as modified
by this Agreement.
(b) The Borrower has full power and lawful authority to
execute and perform this Agreement and this Agreement constitutes a
legal, valid and binding obligation of the Borrower, enforceable
against it in accordance with its terms.
(c) All representations and warranties contained in the
Reimbursement Agreement are true and correct as of the date hereof, and
after giving effect to this Agreement, no Event of Default or event
which, with the giving of notice or passage of time, will constitute an
Event of Default, will exist under the Reimbursement Agreement.
6. General Provisions.
(a) Limited Amendment. This Agreement shall not be deemed (i) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Reimbursement Agreement or (ii) to prejudice any right or
rights which the Lender may now have or may have in the future under or in
connection with the Reimbursement Agreement or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time
to time.
(b) Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
(c) Successors and Assigns. Whenever in this Agreement either of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower shall inure to the benefit of the
successors and assigns of the Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
BORROWER:
XXXX, INC.
By:
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Name:
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Title:
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LENDER:
FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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Schedule A
Loans to Xxx Xxxx, XxXxx Belk and Xxxxxx Xxxx
RESOLVED, that it be approved for the corporation to loan to Xxxxxx X. Xxxx, Xx.
the sum of Two Million Five Hundred Thousand Dollars ($2,500,000) to be repaid
in five equal annual installments beginning on January 5, 2003 with interest at
the rate of LIBOR + 150 basis points. The loan will be secured with a pledge of
the corporation's Class A common stock and may be prepaid in whole or in part at
any time without penalty. In lieu of cash, loan payments may be made though a
surrender of collateral valued on the basis of an independent appraisal.
RESOLVED, that it be approved for the corporation to loan to X.X. XxXxx Xxxx the
sum of Two Million Five Hundred Thousand Dollars ($2,500,000) to be repaid in
five equal annual installments beginning on January 5, 2003 with interest at the
rate of LIBOR + 150 basis points. The loan will be secured with a pledge of the
corporation's Class A common stock and may be prepaid in whole or in part at any
time without penalty. In lieu of cash, loan payments may be made though a
surrender of collateral valued on the basis of an independent appraisal.
RESOLVED, that it be approved for the corporation to loan to Xxxx X. Xxxx the
sum of Two Million Five Hundred Thousand Dollars ($2,500,000) to be repaid in
five equal annual installments beginning on January 5, 2003 with interest at the
rate of LIBOR + 150 basis points. The loan will be secured with a pledge of the
corporation's Class A common stock and may be prepaid in whole or in part at any
time without penalty. In lieu of cash, loan payments may be made though a
surrender of collateral valued on the basis of an independent appraisal.
